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Part I: The Themes of Slavery and Property Rights, 1776-1860

With them [abolitionists] the right of property is nothing; the deficiency of the powers of the general government is nothing; the acknowledged and incontestible powers of the States are nothing; a civil war, a dissolution of the Union, and the overthrow of a government in which are concentrated the fondest hopes of the civilized world, are nothing. A single idea has taken possession of their minds, and onward they pursue it, overlooking all barriers, and regardless of all consequences .

A third impediment to immediate abolition is to be found in the immense amount of capital which is invested in slave property. The total number of slaves in the United States, according to the last enumeration of the population, was a little upwards of two millions. Assuming their increase at a ratio, which it probably is, of five per cent. per annum, their present number would be three millions. The average value of slaves at this time is stated by persons well informed to be as high as five hundred dollars each. To be certainly within the mark, let us suppose that it is only four hundred dollars. The total value, then, by that estimate, of the slave property in the United States, is twelve hundred millions of dollars. This property is diffused throughout all classes and conditions of society. It is owned by widows and orphans, by the aged and infirm, as well as the sound and vigorous. It is the subject of mortgages, deeds of trust, and family settlements. It has been made the basis of numerous debts contracted upon its faith, and is the sole reliance, in many instances, of creditors within and without the slave States, for the payment of debts due to them. And now it is rashly proposed, by a single fiat of legislation, to annihilate this immense amount of property! To annihilate it without indemnity and without compensation to its owners! Does any considerate man believe it to be possible to effect such an object without convulsion, revolution, and bloodshed?

I know that there is a visionary dogma, which holds that negro slaves cannot be the subject of property. I shall not dwell long on this speculative abstraction. That is property which the law declares to be property.
Speech of Henry Clay on abolitionist petitions in the Senate, February 7, 1839, in Swain, The Life and Speeches of Henry Clay, 2:398, 410 (emphasis added)

Chapter 1Slavery, Property Rights, and the American Revolution

When the English settled at Jamestown, they began creating a European civilization in North America, and thus they imprinted upon the early English outposts all the elements of their culture, bad as well as good. From the unhealthy side came the planting of slavery in the English colonies. Slavery grew in the American colonies because it was profitable, and by the time of the Revolution it was a massive institution representing one and one-half centuries of investment. That investment required state protection. As the newly formed United States found out, a central government with some power was necessary if the nation were to survive. At the formation of the Constitution came then the marriage of politics and economics that haunted six decades of the nineteenth century. To create a nation, the Constitution makers pulled together different and antagonistic strands of English political and cultural ideals as well as American colonial practices: the necessity of protecting private property from majoritarian assault, the requirements of individual liberty, the enshrinement of local authority, and an acknowledgment that African slaves in North America were in some manner property. The well-understood antagonism lodged within the nation was that the nation was founded upon the principle of individual liberty while it sanctioned chattel slavery. At the same time, however, leaders broadcasted all the deficiencies of slavery, a list to which the later decades would add virtually nothing. But the afterglow of the Revolution bathed many difficult problems in a warm, optimistic light. Slavery would disappear, and property rights, instead of being used as a device to make aristocracy impregnable, would instead be instrumental in protecting the rights of common folk, thus helping to preserve popular government and the principle of majority rule.

Several conditions led to the establishment of slavery in North America. Upper-class Englishmen had low opinions of those who did manual labor, and the elite used various forms of servitude to obtain cheap labor. The English were also interested in amassing wealth. North America was strangely unpopulated compared with the other continents of the Earth, and at the time of the arrival of the English, diseases had decimated the resident Indian tribes. There was thus a vast amount of land but little populationa unique condition in the world of 1600. When the English found a commercial crop in tobacco, they were able to supply their needs through servants brought over from England by the system of indentured servitude. In Maryland, Virginia, and South Carolina (where rice became the important commercial staple), the rise of large farms using some form of controlled labor had fully blossomed by the last half of the seventeenth century. Slavery had been dead in England for about 400 years or so, its demise slowly being recognized in statutes and judicial proceedings, but servitude continued to possess certain aspects of slavery. The master had some conditional property rights in the labor of the servant and control over the servant's mobility; he had the capacity to sell the property rights in labor to other parties. The conditional aspects of those property rights were limitations on punishments, a limit to term of service, the nonhereditary quality of servitude, and the fact that servants could sue masters for breach of contract. The essential difference was that the law recognized servants as human beings (usually English human beings) possessing nonbarterable rights. That is, servitude did not reduce a person to the level of an animal, to personal property.

Dutch traders brought the first Africans to Jamestown in 1619 for sale as servants, although the normal tendency in today's scholarship is to stress the early emergence of chattel slavery. Slavery for Africans may have developed rapidly, but it is clear that the numbers of slaves did not. Planters until the 1660s depended on English labor in the form of indentured servants to take care of their labor requirements for tobacco cultivation. Between 1660 and 1700, however, the supply of English labor dwindled because wages in England improved, and the planters suddenly lacked an adequate servile labor forcewhich simply meant they lacked cheap, manageable labor. Moreover, English servants in the colonies became unruly. For these reasons, the colonial planters, through their legislators, turned to Africans for a labor supply. They wrote the laws of slavery that defined slaves by race, made the condition hereditary, and denied that emancipation could be achieved by conversion to Christianity. In these laws the slave also became a chattela piece of property over whom, except for certain public safety reasons, the slave master had total dominance, as much as a property holder had over land, animals, or other articles of personal possessions.[1] As of 1660, there were probably barely 3,000 Africans on the North American mainland. The engine of the slave trade then roared; by 1680, there were 7,000, by 1700, 28,000, by 1720, 69,000, by 1740, 150,000, and in 1770, 460,000. Imports from Africa would reach their height after the Revolution, between 1800 and 1820.[2]

Why slavery manifested itself in North (and South) America just when its death was being recorded in Europe has two reasons. The first was economic. Europeans in either of the Americas were few, but the land mass was great. To obtain labor, the Europeans turned to forced labor, either of Indians or of some imported race. Second, the Europeans carried with them an ethnocentrism that easily rationalized the enslavement of people different from themselves. The skin color difference between Indians, Africans, and Europeans led to an obvious rationale for enslavement of people of different color: they were easily identified and controlled. But the ethnocentrism element among Europeans operated in a particular way to promote slavery. European society had been built on communities of quite homogeneous population types; they noted the differences among themselves, let alone between them and the rest of the world's population. Within their group they incorporated individuals into the existing community; that is, they bestowed upon individuals the community notion of rights, privileges, and activity. Those outside of the community did not receive the same treatment; they were the "others." In North America in 1610 or 1660 or 1700, English men and women were not made slavesthey were members of the English community and had the "rights and privileges" of English people. The crown and Parliament would never have allowed English colonials to have enslaved other English colonials.[3] Nor could the English have easily enslaved other Europeans without risk of retaliation from their mother countries. The Spanish were in Florida and parts of Georgia, the French in Canada, and other Europeans could rely upon their descent to ward off the labor-hunger of the English. But none of these rules applied to Indians or to Africans. They were not members of the community, and they, except for the Indians, lacked a national power base to threaten the English. In short, Indians and Africans were vulnerable and so became the obvious sources for some sort of servile labor pool for the English.

To this must be added the inchoate stage of economic development of Europe. Economic rules, except for vague ones supplied by church and government, did not exist in terms of how individual and national wealth could be best accumulated. Theorists were only beginning to promote the ideas that became mercantilism; physiocracy awaited the opening of the eighteenth century; and Adam Smith would not begin the codification of the rules of a market economy until 1776. Shortly after 1650 or so, the Atlantic economic community assumed a distinct shape, and the benefits of extended trade would teach people how individuals and nations acquired wealth by exchange of goods. Prior to 1600, however, the way to wealth was fairly simple and had been simple for 2,000 years. Wealth was obtained, it was somewhat true, by trade, but mostly from the employment of servile labora cheap labor made to work to benefit a social superiorand more generally by conquest. The earth yielded its fruits, grains, and minerals, and individuals by their own labor could obtain a modestly healthy living; but to live in grandeur one had to conquer others and force them into a cheap labor pool, into some form of servility.

When the English (or the French or the Spanish) came to the Americas, they brought this older notion of wealth accumulation with them. Some trade or barter with the indigenous people might occur, but the invaders knew that the wealth they wanted could only be obtained via conquest and servile labor. And so we come to one of the major original sins of the English founding of North America. They condoned and legitimized violence in the pursuit of wealthviolence against the "others" not wrapped in the protective folds of European community. In modern economic terms, a market economy is ethical and legitimate (among these type of economists) only so long as all actors make uncoerced choices, and the existing alternatives represent real choices (not alternatives that deny a choice, such as life or death). Servitude could be an uncoerced choice; but slavery was the offspring of unrelenting violence.[4]

Given the conditions of early America, the English should not have established slavery. Had the rules of a market economy been formulated and enforced, coercion of either labor, yeoman farmer, or aristocrat would have been forbidden. The result would have been small farms producing subsistence crops and a vastly reduced tobacco and rice yield. Such a result was foretold by the conditions of North America in the seventeenth century: extensive land that could be obtained at a low price, few settlers, and the observance of the rule of noncoercion. Remove the rule of no violence to obtain material goals, that all economic activity had to be done by mutual consent, and the result was slavery.[5]

Even then, Virginians and South Carolinians might have established slavery without the chattel principle. Other means existed to deal with the labor shortage than by legally transforming people into property. In particular, the colonial governments or even Parliament or the king could have maintained ownership of all slaves and merely have leased them out to planters. Through some arrangement, planters could have been allowed to obtain the labor of slaves without acquiring property rights in the bodies of slaves and their progeny. Under that circumstance, emancipation might in the future have been more easily accomplished. But domination of others via the right of an individual to an absolute control of his or her property was to be the guiding principle of American slavery. That principle created the snowball effect. The slave became an asset, a thing representing invested wealth; as the use of slaves became economically effective in certain types of agricultural activity, the wealth grew in a compound fashion. As the slaveholders recognized that their wealth in slaves was compounding, they became more and more resistant to any infringement upon their rights of ownership. So it came to pass that a system of human relations founded in violence, nurtured by violence, and maintained by violence, while constantly augmenting wealth, could only be removed by violence.[6]

While Virginians and South Carolinians fashioned the legal bulwarks of American slavery, other aspects of the colonies evolved along different lines. The customs, values, institutions, and practices of England came over to the American mainland but began mutating. Those changes were in general toward a leaner, less intrusive government, a more open economy, a society marked by the emergence of the yeoman farmer, the rise of a ruling business class rather than a true aristocracy, and a diversity of Western European ethnic and religious groups.[7] Because England failed to govern the American colonies directly, with a firm hand strengthened by an active on-site bureaucracy, American and British customs started diverging. That separation of customs and ideals grew large enough so that when Parliament tried to extend its governing power over the colonies after 1763, the colonists resisted. Indeed, the colonists began to understand that their differences with England socially, politically, and economically were irreconcilable, and that separation from the empire was the only alternative the American colonists had to preserve their own traditions and ideals. So when the British Parliament attempted to tax and regulate trade in the American colonies in 1763, it sparked off a process that led to the American Revolution, a period that may be considered as extending from 1763 to 1790. Out of the Revolution came a host of ideas about personal freedom, relations between church and state, monopolies and special privileges, republican forms of government, social values, and the nature of aristocracies. As well, the Revolution broadcast the central message that the rights of property were to be observed and made sacrosanct.

The heart of the American Revolution politically, economically, socially, and ideologically was a strident defense of the individual's right to property, in particular the right of individuals to earn, keep, and dispose of their property without the interference of any other power, especially the power of government. The rebel insistence on property rightsat times appearing to be a monomaniahas unsettled historians. Property with its earthy, material connotations evokes emotions that at best seem primitive and uncivilizedundiluted greed, selfishness, and mean-spiritedness. Scholars wish to see in revolutions more exalted sentiments and arguments for the future welfare of society. Thus, rather than dwell on the colonials' obsession with private property, they have (rightfully) emphasized the revolutionaries' advocacy of representative government, antiaristocratic laws, local control of domestic affairs, freedom of expression, and citizen participation in politics. Yet all these concerns have strong connections to the revolutionaries' understanding of property rights. When historians have dealt with the topic, the discussion tends to become dichotomoussheer good or sheer eviland the generalizations usually have not located some of the ambiguities, problems, and promises that the American doctrine of property rights evoked. One observation has not been sufficiently stressed: the doctrine of property rights can at certain times have distinct egalitarian purposes.

The American struggle over property rights during the Revolution set the stage for the Civil War and, indeed, for the tumults of American elections for the next two centuries. Property rights were central in both the ideological defense and attack on slavery. The economic consequences of private property doctrines made secession inevitable. And it was the political consequences of property rights, and particularly the strains they necessarily imposed on popular government, that led to the realignment of the 1850s. Most of these results flowed from the property rights decisions made by the revolutionary generation.

American colonial rebels meant physical property when they spoke of property rights, and only infrequently offered a broadened sense of property. At times, leaders used property to include personal rights to religious opinion, speech, assembly, and use of talents and faculties. Yet the common written or verbal expression about property rights was unmistakably precise: the revolutionaries meant the right of individuals to possess material property.[8]

Parliament's attempt to tax the colonists directly or indirectly drew a shriek from the colonials that they were being taxed without their consent and thus being deprived of their property. And there was no mistaking that the colonists meant physical property. Wrote Virginian Richard Bland in 1766 against the Stamp Act, "If a Man invades my Property, he becomes an Aggressor, and puts himself into a State of War with me; I have a right to oppose this Invader." Two years earlier, Massachusetts lawyer James Otis argued against taxation without representation, "For what one civil right is worth a rush after a man's property is subject to be taken from him at pleasure without his consent? If a man is not his own assessor in person or by deputy, his liberty is gone or lays entirely at the mercy of others." The Continental Congress did not leave much to the imagination about the meaning of property when it issued addresses, petitions, and appeals to various groups and governing bodies. "Know then," the Congress declared in a 1774 address to the people of Great Britain, " that no power on earth has a right to take our property from us without our consent." In another address in 1775, the congressional members narrowed down the constitutional dispute with England to one sentence: "We contend for the Disposal of our Property." Explaining the position of the Americans to the British inhabitants of Quebec, the Continental Congress made clear why representation was so vital a principle: the first right the Americans wanted was the right of representation as "This is a bulwark surrounding and defending their [the people's] property, which by their earnest cares and labours they have acquired, so that no portions of it can be legally taken from them, but with their own full and free consent[.]"[9]

Fewer ideas had a more secure place in the minds of the Americans than the belief that civilization rested on property rights. As John Adams wrote in 1778, "Property is surely a right of mankind as really as liberty." James Madison made it apparent in Federalist 10 that the reason for the adoption of the Constitution was to secure more strongly for Americans their property even if that meant protecting the unequal distribution that property ownership naturally took. In fact for many of the late eighteenth century, the equation linking civilization and property rights was perfect: to have civilization, one had to have property rights of individuals protected. If property rights were not protected, then civilization could not exist.[10]

Many sources fed the American belief of the centrality of property rights in the mid to late eighteenth century. Some proclaimed that property rights elicited the good character traits of sobriety and industry in the general population and thus benefited all of society.[11] Others stressed that unless persons were allowed to accumulate property by hard work, they would not exert themselves and the result would be economic stagnation.[12] Many insisted that property was basic for a republican polity as it gave citizens independence and acted as a bulwark against tyrannical government; of recent years, historians have incorporated this view of property under the synthesis termed "republicanism."[13] Most commonly, Americans upheld the idea of private property by referring to it as a natural right, and justified it by using the natural right argument of the late seventeenth-century philosopher John Locke.[14] Just as important as the heritage of European ideas was the physical circumstance of the colonies: for white men, the expanse of land far exceeded the numbers of people inhabiting it, thus ownership of property in the form of land was common. Therefore, popular allegiance to doctrines calling for individual property rights was not irrational for this type of society. Whatever its source, early American society was almost maniacally devoted to maintaining the rights of individuals to property.

The commonplace method of handling property rights in the American past is for historians to divide the society politically into conservatives, those who elevated property rights above all other rights, and democrats (or reformers or radicals) who placed property rights below social and human welfare. In the early history of the United States, the struggle over control of state governments, paper money laws, Shays's Rebellion, the framing of the Constitution, its ratification, and the emergence of political parties in the 1790s have frequently been described as fights over property rights between conservatives and democrats. Usually, the conservative pro-property rights side has been identified with privilege and high status. Indeed, the interpretive brunt of such studies is simple enough: property rights doctrines when they appear invariably are used by individuals seeking to protect the wealth, status, and power of the existing elite at the expense of those unfortunately situated. American politics has been frequently reduced to a fight between democracy and the rights of property.[15] This interpretation, it might be noted, is generally true.

However, there is a hidden egalitarianism operating in the eighteenth-century American doctrine of property rights. That egalitarianism arises from the contemporary description of how property was to be obtained and who were the enemies of the legitimate means of acquisition. The answers were that only industry and labor legitimized personal property, actions that all humans could partake in. The enemies of property were aristocrats who used government to usurp for themselves the small holdings of the multitude. The doctrine of property rights among aristocrats was indeed conservative, status quo dogma; but property rights when used to protect those who labored and added value to the world had something of a democratic character.[16]

When Americans complained in the 1760s and 1770s that British policies deprived Americans of their property, they continuously and overwhelmingly identified property as the "fruits of labor." American colonials had adopted a labor theory of property and justified property in possession because the property was the result of labor. John Locke had used the labor theory of value or property to explain the origin and legitimacy of property rights by asserting that as every person "owned" himself, he also owned his own labor; when a person bestowed labor upon some object, only that person was entitled to ownership of the value produced. Locke had used the labor theory of value ultimately to defend inheritances and the property distribution obtaining in late seventeenth-century Englandthe property holdings (primarily land) of aristocrats were to be sancrosanct because aristocrats had possession of them.[17] This was not the case with the Americans. Property rights were to be observed because individuals labored assiduously to obtain property and therefore deserved to possess it. For the Americans the key was activity in the form of labor.